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Thursday, December 21, 2006

What is "exculpatory"?

Without an open-file policy, prosecutors find themselves making judgment calls about what evidence to conceal from defendants before trial, like the prosecutors in this string from the Texas District and County Attorneys Association user forum.

The question at hand - is it right to withhold evidence that could change the outcome of a case, even if it doesn't speak directly to the guilt or innocence of the defendant in the charges brought? (In this case, an unjustified traffic stop for a bad tail light led to an allegedly justified DWI arrest.)

IMO the prosecutor made the right decision to dismiss in this case, but it's still an interesting glimpse at the thought processes behind decisions whether to release exculpatory information - essentially haggling over the definition of what is "exculpatory" - especially in departments that don't have an openness policy.

An assistant county prosecutor from Richmond, TX offered this light-hearted definition of what is "exculpatory":

exculpatory - adj. 1) something courts determine you should have disclosed after you've already withheld it. 2) to be considering the possibilities of living life as the former wife of actor Robert Culp.

10 comments:

kaptinemo
said...

Owwww! (Wincing at bad Culp pun) As a kid growing up in the 1960's, I Spy was one of my favorite shows, partly because of the seemingly effortless banter and clever jibing between Cosby and Culp, partly because of the fairly intelligent plot lines. It wasn't until much later as I grew more aware of racial tensions in America that I realized how much of a ground-breaker it was.

I have been following the "What is "exculpatory"?" posts occurring on Grits for Breakfast and the TDCAA user forum. I feel that every district attorney’s office should be required by law to have an “open file” policy. However, an “open file” policy is only as good as the integrity of the prosecutors. For example, exculpatory evidence obtained by the DA’s office may not make it into the “file” so that even if the defense can see the prosecution‘s “file”, the exculpatory evidence is not there to be discovered. Such is the case with the Taylor County Texas DA’s office under the notorious “closed file” leadership of James Eidson.

My father has experienced a 5 year long “What is Exculpatory?” ordeal as a result of James Eidson’s “closed file” policy and his unscrupulous prosecutors. We have learned that prosecutors can hide and destroy evidence and secrete witnesses to exculpatory evidence in an effort to obtain a conviction and deprive defendants of a fair trial. Senior Judge Billy John Edwards declared a second mistrial in State v. Masonheimer after finding that the Taylor County District Attorney's Office engaged in "reckless conduct" in the case.

http://truthinjustice.org/judge-harper.htm

http://truthinjustice.org/robert-harper.htm

In a pretrial hearing before the second trial, Judge Edwards issued a new discovery order to the prosecution, “If you have investigators who have talked to people and didn’t take statements from them, but they…made exculpatory statements, the court orders you to let the defense know what those statements were.” Despite the judge’s direct order, the prosecution not only concealed evidence from the defense, but also intentionally withheld the evidence from the state’s file. The second trial ended in mistrial when the withheld evidence was discovered during a state’s witness testimony. In the resulting mistrial hearing, the prosecution finally offered to let the judge see the state’s file in camera. Judge Edwards replied, “I could have read your file a hundred times and wouldn’t have found it…“ He was speaking of the exculpatory evidence turned over the prosecution by state’s witness John Upchurch. Judge Edwards further added,“ Steve Clappart’s notes weren‘t in there for some reason.” Mr. Clappart was Taylor County DA’s investigator who learned of, investigated, and took notes of the exculpatory evidence. The notes mysteriously disappeared and were not found in the state’s file.

The lead prosecutor in the trial is now a Taylor County Court at Law Judge so complaints were filed with both the State Bar Commission for Lawyer discipline and the Judicial Commission. After lengthy “investigations” by the commissions the case was mysteriously dropped with no explanation. As long as the entities which are set up to police renegade prosecutors are unable or unwilling to discipline such misconduct, there is no deterrent preventing the misconduct from being repeated over and over again. These practices lead to innocent people being falsely convicted and imprisoned. When prosecutors can violate Brady and other laws designed to provide defendants a fair trial, the prosecutors are GUILTY of breaking the law themselves. The judicial system must be changed to hold prosecutors accountable for their actions.

The following are the issues before the Court of Criminal Appeals in the case:

05-0521 MASONHEIMER, JAMES S. 06/08/05

1. TEXAS AND FEDERAL LAW FIRMLY HOLD THAT THE TERM "PROSECUTION" ENCOMPASSES THE ENTIRE PROSECUTORIAL TEAM – NOT MERELY A CASE'S LEAD PROSECUTOR. IN REVIEWING THE TRIAL COURT'S FINDING THAT THE STATE RECKLESSLY WITHHELD EXCULPATORY EVIDENCE, THE EASTLAND COURT OF APPEALS FOCUSED SOLELY ON THE MENS REA OF THE STATE'S NEW LEAD PROSECUTOR FOR THE SECOND TRIAL WITHOUT EXAMINING THE REMAINDER OF THE STATE'S PROSECUTION TEAM. DID THE COURT OF APPEALS IMPROPERLY FOCUS SOLELY ON THE CONDUCT OF THE SECOND LEAD PROSECUTOR IN HOLDING THAT TRIAL COURT ABUSED ITS DISCRETION BY GRANTING HABEAS CORPUS RELIEF? 2. THE RECORD AMPLY DEMONSTRATES THAT DAN JOINER, THE STATE'S SECOND LEAD PROSECUTOR, ERRONEOUSLY AND REPEATEDLY WITHHELD EXCULPATORY EVIDENCE DESPITE MULTIPLE ADMONITIONS BY THE TRIAL COURT TO EXAMINE THE STATE'S FILE AND TURN OVER ALL BRADY MATERIAL TO THE DEFENSE. DID THE EASTLAND COURT OF APPEALS INCORRECTLY HOLD THAT THE RECORD DOES NOT SUPPORT A FINDINGS OF RECKLESSNESS ON THE PART OF DAN JOINER? 3. DOES A PROSECUTOR HAVE A DUTY TO DISCLOSE ALL EXCULPATORY EVIDENCE UNDER BRADY V. MARYLAND WHEN THE DEFENDANT PLEADS NOLO CONTENDERE?

Here in Hale County, I'm the only attorney who had been denied access to the DA's "open file" policy. So like many others, I, too, have been without the offense reports and incident reports in half my cases due to one judge not believing that 39.14(a), as amended, permits full disclosure. I tried two robbery cases to the jury, one aggravated, and though I repeatedly tried to demonstrate prior to trial how bad the cases were to the DA, he refused to consider my concerns. Ultimately, the jury acquitted on both charges, though the judge granted my motion to drop the aggravated charge to theft from a person based upon the State's pleading and lack of evidence. Less than a week later, the DA closed the files to me alone. Interestingly, during the trial a complainant testified he'd tried to give documentation of the use of his credit cards to the police and was told to just hold on to it. At trial this case out due a comment in his written statement about a phone card. He claimed he brought the credit card information to the DA and that the DA investigator took it from him when he went into the pre-trial hearing and returned it to him after the hearing. He further testified that a credit card was attempted to be used immediately after the robbery at a gas station in town. When I moved for dismissal for the obvious Brady motion, the Court had the DA investigator come in and testify. He admitted as true what the complainant had said. The Court then sent the complainant home with the DA's investigator to retrieve the documents. When the complainant returned, the relevant document was missing. Then the complainant backtracked on his testimony causing the judge to demand to know how the witness could have been speaking about a gas station in town if his prior testimony was mistaken. Ultimately, the judge denied the dismissal motion, the jury found my client not guilty on both counts, the DA closed his files to me, and now has asked at least two law enforcement agencies to deny me access to any information they possess, and in one case told the officer I was "unethical." What's the status of the Masonheimer case now?

For those of you that follow this serious problem, this was in today's Boston Globe.

The federal judge in this case is Mark Wolf and for those of you who don't know Wolf, he is the judge who caught the FBI witholding evidence in the Whitey Bulger case that led to the conviction of an FBI Agent named John Conley. The Bulger fiasco, Conley's conviction, and the whole FBI problem in Boston, is the backdrop for the movie "The Departed."

I worked in Massachusetts and I had some dealings with Wolf. He catches federal prosecutors frequently and he's not shy about writing about what he calls "deliberate misconduct", among other things.

Prosecutors are suppose to be a filter not a sieve but they like their investigators become embroiled in the accumulation of information that in the end they're responsible for. There is absolutely no non-deceitful way to have 15 different law enforcement agencies working together with one set of rules. That's the task force concept and it's that mentality that creates these situations every time.

Something needs to be done about the judges in Texas also. The DA and the judges make the decisions about how the case is going to come down before the trial even begins. I know this for a fact and have witnessed it in person. Texas is the most corrupt State in the USA. Especially Harris County and the CCA court 1.

Mr. Masonheimer's case was dismissed with prejudice by the trial court due to prosecutorial reckless conduct. A Habeas Hearing determined that double jeopardy barred retrial. The state appealed and the 11th Court of Appeals reversed and remanded. The case was submitted to the court of criminal appeals 1 year ago and we are awaiting their decision.

It is interesting to note that in the 11th COA opinion the 11th COA felt that the prosecutorial misconduct should be remedied through the political and legislative processes. Apparantly, they didn't think the Commission for Lawyer Discipline or the Judicial Commission would take action against the misconduct of a prosecutor.

The lead prosecutor in the second trial (co-prosecutor in the first trial) accepted a private repremand from the State Bar, while the lead prosecutor in the first trial was elected judge. Isn't our Texas judicial system great!?

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